Lincoln on Trial: Southern Civilians and the Law of War

By Burrus M. Carnahan | Go to book overview

3
“Strong Measures,
Deemed Indispensable
but Harsh at Best”
Retaliation and Guerrilla Warfare

Most of the house burning that bothered the president had been carried out, by both sides, as acts of “retaliation.” In theory, each was a response to a violation of the laws and customs of war by the other side, intended to deter future violations. Article 27 of the Lieber Code expressed the prevailing view: “The law of war can no more wholly dispense with retaliation than can the law of nations, of which it is a branch. Yet civilized nations acknowledge retaliation as the sternest feature of war. A reckless enemy often leaves to his opponent no other means of securing himself against the repetition of barbarous outrage.” Retaliation is the “sternest feature of war” because it necessarily inflicts punishment on the innocent rather than the guilty. Acts of retaliation cause innocent civilians or prisoners of war to lose their property, their freedom, and perhaps their lives as a means of persuading a guilty enemy to cease acts that the retaliating party regards as violations of the laws and customs of war. Perhaps out of Victorian delicacy, Francis Lieber did not make this explicit. The U.S. Army’s official guidance on the law of war in 1914 was more blunt: “Persons guilty of no offense whatever may be punished as retaliation for the guilty acts of others.”1

Two highly effective acts of retaliation by the Confederacy—one threatened, the other executed—illustrate how the practice was supposed to work. The issue in both cases was whether certain Confederate combatants were entitled to be treated as prisoners of war.

-53-

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